Hashatsi fights on
LIEUTENANT-COLONEL Tefo Hashatsi, has lost a court bid to have the SADC inquiry into the death of former army commander Maaparankoe Mahao declared illegal.
The Lesotho Defence Force (LDF) Special Forces commander had filed an urgent application on 16 October 2015 before the High Court challenging the commission’s legitimacy, and arguing that it had violated terms of its formation by hearing evidence in South Africa while it was established by a Lesotho law.
Lt-col Hashatsi also accused the commission, and in particular its chairman Justice Mpaphi Phumaphi, of bias against him. LtCol Hashatsi accused the Botswana judge of making him appear as if he was the prime suspect in the killing of former LDF commander Maaparankoe Mahao.
Lt-gen Mahao was shot dead on 25 June 2015 by his army colleagues while being arrested for allegedly being the ringleader of a group of soldiers who had plotted to topple the LDF command.
However, on Monday senior High Court judge, Justice Tšeliso Monaphathi, dismissed the challenge saying it was premature for LtCol Hashatsi to seek to nullify the SADC commission before it had completed its inquiry. The report was tabled in the National Assembly on Monday by Prime Minister Pakalitha Mosisili.
“Only after the commission had released its report could he (Lt-col Hashatsi) challenge it. It is true, according to Ms (Anna-marrie) de Vorse, that the attack was premature,” he said.
Senior Counsel de Vorse was representing the late Mahao’s wife, ‘Mamphanya, who became the lawsuit’s fifth respondent after asking the court to be part of the proceedings.
The other respondents from first to fourth respectively were Dr Mosisili, Justice Phumaphi, the SADC Commission and AttorneyGeneral Tšokolo Makhethe. Rights group
Transformation Resource Centre also joined the case as “friends of the court”.
Justice Monaphathi said Lt-col Hashatsi
could still challenge the legality of the SADC Commission of Inquiry after its release.
“I still repeat that Mr Hashatsi has a right to challenge the commission,” he said.
“The initial challenge was premature because it came by way of a review, and a review is only done on completed proceedings.”
The judge rejected Lt-col’s Hashatsi argument that the commission acted beyond its powers by gathering evidence in ThabaNchu, South Africa where exiled opposition leaders and members of the army gave testimonies.
“There were reasons why this was done,” Justice Monaphathi noted.
“Since the commission was a tribunal in terms of the Public Inquiries Act, I didn’t find any serious statement in our law preventing it from sitting either in Welkom, Mooderport or anywhere.”
However, Justice Monaphathi also rejected Justice Phumaphi and the SADC Commission’s argument that they were immune from litigation in Lesotho.
“I found this submission problematic. In the first place, the Public Inquiries Act operationalised the commission,” he said.
“Therefore, the commission must operate in terms of the laws of Lesotho.”
The judge said Lt-col Hashatsi was justified in making a High Court application in October last year not to appear before the commission for the second time because of the “worrisome” attitude of Justice Phumaphi.
“He (Lt-col Hashatsi) denied himself an opportunity to appear before the commission because the attitude of the chairman would have manifested itself,” said Justice Monaphathi.
“There were some issues that were worrisome (in Justice Phumaphi’s line of crossexamination) such as the statement that ‘I put it to you’.
“I have never heard (such line of questioning) in this jurisdiction coming from the bench. It suggested that the chairman new something that the witness didn’t know.”
The judge did not make any order with regards to the costs of suit.